Smart v State of South Australia (No 2) No. Dcaat-01-585

SMART v THE STATE OF SOUTH AUSTRALIA
[2002] SADC 177
Judge Rice and Members Bachmann and Shetliffe
Administrative and Disciplinary Division (Equal Opportunity Tribunal)
Introduction

In this matter, the Commissioner for Equal Opportunity has referred a complaint by Mr Jason Smart pursuant to s.95(8)(c) of the Equal Opportunity Act, 1984 (South Australia) (“the Act”). Particulars of the complaint are:-
“That in July, August and/or September, 2000, Primary Industries and Resources SA, GPO Box 1671, Adelaide 5001 in the State of South Australia discriminated against the said Mr Jason Smart, contrary to Sections 66 and 67 of the Equal Opportunity Act, 1984 (SA).”
This is the second judgment of the Tribunal in this matter. Earlier this year, the Tribunal heard argument on a preliminary point of law, namely, whether s.54 of the Workers Rehabilitation and Compensation Act, 1986 operated to exclude the operation of the Act. The Tribunal held that the operation of the Act was not excluded and the preliminary point was rejected. This judgment concerns the merits of the case relating to the substantive complaint.
In summary, Mr Smart’s complaint is that there was discrimination against him on the basis of impairment when he applied within Primary Industries & Resources SA for the position of Apiary Inspector, Apiary Culture Unit. The alleged discrimination relates to two interviews for the position and the result of the selection process. The facts and legislation are referred to below.
By way of remedies, Mr Smart seeks a determination, pursuant to s.96 of the Act, that there has been a contravention of the Act in the form of discrimination in employment on the basis of impairment (ss.66 and 67). He also seeks an order for compensation for his economic loss and injury to his feelings (s.96(3)).
We will refer to a number of legal principles later in this judgment but, for the moment, we refer to the relevant portions of the legislation:-
“66.   For the purposes of this Act, a person discriminates on the ground of impairment -
(a)     if he or she treats another unfavourably because of the other’s impairment, or a past or presumed impairment;
(b)    if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and -
(i)the nature of the requirement is such that a substantially higher proportion of persons who do not have such an impairment complies, or is able to comply, with the requirement than of those persons who have such an impairment;
and
(ii)the requirement is not reasonable in the circumstances of the case;
(c)    if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons who have such an impairment, or on the basis of a presumed characteristic that is generally imputed to persons who have such an impairment;
(d)    if, in circumstances where it is unreasonable to do so -
(i)he or she fails to provide special assistance or equipment required by a person in consequence of the person’s impairment;
or
(ii)he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other’s impairment;
(e)    ....”
“67.   (1)    It is unlawful for an employer to discriminate against a person on the ground of impairment -
(a)     in determining, or in the course of determining, who should be offered employment;
or
(b)    in the terms or conditions on which employment is offered.
(2)    It is unlawful for an employer to discriminate against an employee on the ground of impairment -
(a)     in the terms or conditions of employment;
(b)    by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits connected with employment;
(c)    by dismissing the employee;
or
(d)    by subjecting the employee to any other detriment.”
Pursuant to s.5 of the Act, impairment means “intellectual impairment or physical impairment”. Physical impairment includes a partial loss of any part of the body.
“6.     (1)    For the purposes of this Act, the holder of a public or statutory office will, in carrying out official duties, be taken to be acting in the course of employment.
(2)    For the purposes of this Act, a person acts on a particular ground referred to in this Act if the person in fact acts on a number of grounds, one of which is the ground so referred to, and that ground is a substantial reason for the act.
(3)    For the purposes of this Act, a person (‘the discriminator’) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.”
Background
Mr Smart is 32 years of age and has a prosthesis below the left elbow. He was born with no arm below the left elbow. His personal and sporting achievements bear testament to a high motivation on his part (see exhibit A3, particularly Mr Smart’s curriculum vitae). He always seeks to better himself and looks for new experiences and promotion. The work he has undertaken in the past has required much physical work and, to his credit, the prosthesis has not stopped him being able to do that work. By way of example, Mr Smart bought an old farmhouse at Kangarilla and has done most of the renovating work himself, including building a pergola and moving heavy rocks for a well and retaining walls.
As for his schooling, he completed year 12 at Christies Beach High School and then worked in a number of government departments. Initially, he worked in Woods and Forests, then South Australia Police for 4-5 years, Primary Industries & Resources SA (“PIRSA”) on two occasions, plus time in E&WS, Courts Administration Authority and SA Museum. The second occasion he worked for PIRSA is the relevant period of time for the purposes of this complaint. That second occasion commenced in 1996/1997 and continued until August, 2001 at which time he left PIRSA and now works for SAPOL.
As we understand his evidence and curriculum vitae, at the time he applied for the position of apiary inspector his substantive classification was as a GSE (General Service Employee) within the Pest Eradication Unit of PIRSA. However, at that time, he was performing work as an Acting OPS2 (Operational Stream Level 2), also within PIRSA, which involved inspection and certification of produce entering South Australia from interstate (at the Adelaide Produce Market, Pooraka). Such an inspection was to ensure compliance with current quarantine standards. Mr Smart also certified produce from growers in the Adelaide region. This produce was to be sold interstate.
Part of Mr Smart’s work within the Pest Eradication Unit was as a lure inspector, particularly in the Millswood area where there has been some controversy following spraying as the result of a fruit fly outbreak. One of Mr Smart’s functions was to visit houses in the area and explain the benefits of the spraying programme. He would also be involved in the maintenance of the equipment used for that purpose.
Mr Smart had also been involved in the Broomrape Control Programme at Murray Bridge in an administrative capacity. (Broomrape is a parasitic weed that attacks broad leaf crops.) Mr Smart’s employment sometimes involved working in regional areas. He is able to drive a manual car if necessary, although his licence is conditional on him driving an automatic car. He is also able to lift/move heavy equipment unaided.
Alleged previous discrimination
Mr Smart introduced this topic during the course of his evidence as being relevant to the background, particularly to explain part of his injury to feelings and his reaction to these particular events (TP2-3, 49-50). He gave some evidence about these alleged previous acts of discrimination (TP56-58, 60). There is no doubt that Mr Smart genuinely believes that he was discriminated against in the present matter and that became evident during the course of the hearing (TP43-44).
We have referred to the previous incidents as “alleged” previous discrimination because there is no complaint before us (in any formal manner) that there was discrimination and, in any event, the persons or departments against whom these suggestions have been made have not been heard. Therefore, we cannot make any findings about those previous incidents. Having said that, we do express the view that Mr Smart genuinely believes he was also discriminated against on those previous occasions. How that might be relevant to any compensation is a separate and very difficult question, particularly when it is said that his claimed injury to feelings in the present matter is the last in a line of discriminatory acts.
Apiary Culture Unit and its function
The Apiary Culture Unit is a unit of Animal Health which, in its turn, is a unit of PIRSA. The project manager in the Apiary Culture Unit is Ms Elena Petrenas.
There are about 900 beekeepers registered in South Australia, with about 200‑250 being of a commercial/semi-commercial nature (TP127).
The Apiary Culture Unit usually contains two inspectors, a senior and a junior. Their role is to provide technical advice to beekeepers, when requested, on disease identification and management. The inspectorial function of the officers has a regulatory role where they can dispense orders for management of disease in bees when apiarists do not manage disease themselves (TP126). The current apiary disease control programme was created in 1999 and is due to be completed on 30/6/03. Its main function is to reduce the incidence of the American Foulbrood disease, which is a bacterial larvae disease (TP126).
The inspectorial positions require the inspector to undertake travel and manipulate hives. The position as apiary inspector, for which Mr Smart applied, needed good communication and conciliatory skills. There was evidence from Ms Petrenas as to the physical/verbal volatility of beekeepers when inspectors came to their properties (TP.95, 127-128; see also Dr Gavey TP243-244, 263, 266). She also gave evidence that she was abused by beekeepers when she was visiting their properties because she was female (TP127-128). Dr Gavey (Acting Manager of Disease Control in Animal Health (PIRSA)) also gave evidence about an assault upon an inspector and another incident of threatened assault (TP264). He gave evidence about the difficult nature of the work performed by the apiary inspectors, especially given the factional nature of the apiary industry (TP242-244).
How the position became vacant
Ms Petrenas gave evidence that, in about mid-1999, at the start of the apiary disease control programme, the unit required a second apiary inspector for at least twelve months (TP120). A Mr Michael Steadman was the primary apiary inspector who was promoted from OPS2 to OPS3 at the start of the programme (TP120, 130). This left a vacancy at the OPS2, which had been occupied by Mr Adrian Watson, but he resigned in 2000. A replacement was found for Mr Watson but the successful candidate relinquished the position (TP120, 130). Mr Steadman was, for other reasons, wanting to resign but he was prevailed upon to take twelve months leave instead. Once Mr Steadman took leave there were no inspectors in the unit. At this time (mid-2000), there was also some uncertainty in the unit as to funding and there was also the possibility that Mr Steadman may return early. It was the position to replace Mr Watson for which Mr Smart applied.
The position as advertised
Expressions of interest were sought internally by PIRSA (exhibits R4 and R5). By an e-mail of 4th July, 2000, Ms Petrenas sent a letter to Mr P. Bailey (PIRSA) outlining the nature of the position. The e-mail read as follows:-
“As discussed, I am looking for an individual for 6 months to fill an OPS 3 Apiary Inspector position. There may be an opportunity for this to be made permanent depending on the calibre of the incumbent (and pending reclassification of the position).
Attached for information is a brief overview of the short term tasks the individual will be involved in and the existing OPS2 job and person specifications. The program (referred to as the Mandatory Disease Control Program) is a four year program designed to reduce the incidence of the bee disease American Foulbrood within the State to 9% of registered operations (the current prevalence is approximately 32% of operations). The program is still in its infancy so there is scope for the Inspector to be involved in both regulatory and training activities.
The incumbent would be located at PIRSA Glenside - though extensive intrastate travel and after hours work is required.
Experience in entomology (particularly bees) and inspectorial activities is not essential though would be desirable. Training in both areas would be provided if necessary.
Could you please direct interested parties to contact myself ASAP as I would like to appoint someone as soon as is practicable.” (Exhibit A1)
The position was advertised at the OPS2/3 level in order to match the wages of possible candidates. As Ms Petrenas put it (TP148), it was a single position and went on:-
“If there was one that happened to meet an OPS3 position, well then we have to possibly reconsider but at the time it was one position, OPS2 with a possibility of a review at the end of the period.” (See also TP227, 236; Dr Gavey to a similar effect 246-7, 273-4).
Mr Smart was informed of the position by an inspector with the broomrape programme, Mr Holberton, and his supervisor at the time, Mr Perepelicia. Mr Smart received a copy of the OPS2 Job and Person Specification from Mr Perepelicia (exhibit A2).
Pre-interview contact
On 13th July, 2000, Mr Smart submitted a very detailed application for the position of “Apiary Inspector” (exhibit A3). Mr Smart was interviewed on two occasions for the position. The discrimination alleged by him derives from the conduct and result of the second interview, although the first is nonetheless relevant.
Prior to the first interview, Mr Smart telephoned Ms Petrenas to inform her about his prosthesis (TP18, 77, 178). She was also informed of his prosthesis by Mr Perepelicia. Mr Perepelicia told Ms Petrenas that Mr Smart was a suitable person for the position (TP141, 177) and that, despite his prosthesis, he was dexterous and manual (TP177).
One of the internal documents (exhibit R5) emphasises that the position may involve lifting weights of up to 35 kilograms repeatedly in a day. Ms Petrenas believed that the weight lifting was a significant issue in terms of occupational health and safety (“OH&S”) because such weights exceeded OH&S limits (TP178, 182-3, 186).
When Ms Petrenas spoke with Mr Smart over the telephone prior to the first interview, she told him that the position was an OPS2/3 position because the work was so diverse and that the project was in its infant stages (TP71). Mr Smart was under the impression that the position would be an OPS2/3 at the OPS2 rate, which would then be upgraded to the OPS3 level after a four-month period, and then possibly further promotion after six months (TP16, 33, 72).
Ms Petrenas said she sent Mr Smart a copy of the industry task force report because he was looking for further information (TP77, 140). Ms Petrenas knew that Mr Smart was attracted to the position because of the opportunity to be promoted and that he was disenchanted with his present work environment (TP237-8).
First interview
Ms Petrenas received nine applications for the position. The candidates were short-listed based on skills and experience and comparing them to the OPS2 Job and Person Specification (TP144-146, 152-3). A question sheet was designed that would allow the interviewers to determine something about the candidates and how much they knew about the industry (TP191-2). There were also role-plays carried out to determine the reactions of candidates in different situations on the job.
A panel was convened to look at the applications for the position. The panel consisted of Ms Petrenas and Dr Gavey (TP144, 247). Ms Petrenas had received no formal training in relation to sitting on panels and had not been a party to any interviews as an interviewer apart from the interviews that led to the employment of Mr Steadman (TP145). Dr Gavey said he had received minor panel training and was involved in only one interview prior to the interviews for the apiary inspector position (TP243). Four candidates were short-listed for interviews, Mr Smart being one of them (TP146). For reasons explained by Ms Petrenas, the panel recommended that two positions be filled (TP154-5), but that each of the successful candidates would need to go on a field trip before a final recommendation would be made. A field trip was necessary to ensure that a selected candidate really wanted the job and was not allergic to bee stings. After a successful field trip, the panel would make final recommendations to the Chief Veterinary Officer (TP152-3). Mr Smart seemed to be of the view that a field trip would take place for the successful candidate and was not a precursor to obtaining the recommendation (TP28-9). The panel needed someone to start as soon as possible (TP256).
The first interview with Mr Smart was on 28th July. His interview ran for two hours and fifteen minutes, twice as long as other candidates interviewed (TP19, 152). Mr Smart gave evidence that Ms Petrenas said during this first interview that, initially, there would be a training period over four months and then a decision would be made as to whether the incumbent would be promoted to an OPS3 level (TP23-24).
Mr Smart gave evidence that the panel informed him that the unit uses manual vehicles. He told them that his licence was restricted to the use of automatic vehicles. He said that, if he was the successful candidate, then it was likely that an automatic vehicle would be required for him during the period before the restriction could be removed to allow him to drive manual vehicles (TP25). Ms Petrenas said that the car was not an immediate issue and that she thought that Mr Smart could get a manual licence (TP123, 169‑170). Mr Smart also said that there was discussion during the first interview about lifting and the weight of beehives. Mr Smart said he was attempting to show the panel that he could deal with such weights (TP26, 32). He said he was questioned three times on this topic and was concerned by the length of these questions. Despite this, Mr Smart gave evidence that he was not overly concerned with the conduct of the first interview. He did not consider that it was unfair to him (TP81). He said there was no questioning of him on his physical disabilities and participation in sport (TP29).
Ms Petrenas gave evidence that she did not discuss with Mr Smart the nature of his disability. She thought he was making an issue of his disability and was constantly wishing to demonstrate to the panel his ability to lift things. She told him he could demonstrate his lifting abilities on a field trip if he was sent on one (TP149). Ms Petrenas also said that there were not any questions targeted to his lifting abilities and that any questions asked by her as to the weights of beehives were raised in an OH&S context (TP150-1). Further, Ms Petrenas said that the interview was so long because Mr Smart went off on tangents and had an inability to understand the questions (TP151). Dr Gavey said that Mr Smart strayed from the questions (TP250). Dr Gavey complemented Mr Smart on the standard of his resumé during the course of the interview (TP270).
Assessment/feedback following the first interview
Ms Petrenas said in evidence that she believed that Mr Smart was aggressive in answering questions and that she knew Dr Gavey thought she had been too generous in her report on Mr Smart (TP194-5, 198; exhibit R9).

Dr Gavey thought that, although Mr Smart could think on his feet when given a problem, his answers tended to be irrelevant and verbose; he made assumptions as to information and misused it; he reacted negatively to high pressure situations (TP253‑5).
Dr Gavey also said that it was the view of both of them that “....we were a little uneasy that his assertiveness bordered on aggression....” (TP258). Dr Gavey also said that he thought Mr Smart was defensive in the interview and that Mr Smart did not have enough qualifications to occupy the OPS3 position (TP259). On this latter point, Ms Petrenas agreed (TP160). Dr Gavey said that both panel members believed that Mr Smart would be suitable for the OPS2 position provided he was supervised (TP259).
Ms Petrenas and Dr Gavey signed a recommendation concerning successful applicants for the positions of Senior Apiary Inspector (OPS3) and Apiary Inspector (OPS2). Mr Smart was ranked third out of the four candidates that were short-listed and he was not recommended. Ms Petrenas said Mr Smart was not successful because his communication skills were not suited to the position (TP155-6), despite the written recommendation saying, in part:-
“Jason’s assertiveness enhanced his verbal communication skills.” (See exhibit R9.)
One of the successful candidates (Mr Hodgson) was chosen because of his exceptional communication skills and the other (Mr Quast) because of his exceptional practical skills and a solid understanding of regulatory and government functions (TP155-6, 275). Both of these candidates were approved and given field trips but both rejected the positions after that trip (TP156-7).
During the three weeks after the first interview, but prior to any feedback from Ms Petrenas, Mr Smart contacted one of the successful candidates and learned that that person went on a field trial but declined the position (TP30, 82-5). Mr Smart then thought he may well be going on a field trial (TP30). He also learned that this person’s interview lasted about forty-five minutes (TP31) and that both successful candidates refused the position after the field trials (TP84).
Mr Smart was eventually given some feedback by Ms Petrenas. He said that Ms Petrenas told him that his first interview was very bad and poorly prepared (TP29, 87) despite, on his account, that he undertook research on the internet to prepare for the interview (TP29). Mr Smart said she told him that he finished third out of four of the candidates and that she wanted to see him for another interview/chat (TP20-1, 31, 85). According to Mr Smart, there was nothing said about there being a change in the vacancy (TP33).
Second interview/chat
This interview was conducted on about 3rd September. Ms Petrenas said she undertook the second interview with Mr Smart to give him a chance to make good his poor performance in the first interview. It was not proposed that another panel be convened, rather it would be more in the nature of an “informal chat” between Ms Petrenas and Mr Smart (TP160-1).
Ms Petrenas gave evidence that, prior to this second interview, she proposed to offer him a field trip as a step towards him being recommended for the position (TP160-2). Ms Petrenas developed another set of questions with the help of a human resources person in the unit (TP163). It is clear to us that Mr Smart and Ms Petrenas have quite different recollections of this interview, not only as to the order in which topics were raised, but also as to the content and meaning of questions. We have had difficulty trying to match when particular topics or questions were raised.
Mr Smart said that Ms Petrenas commenced the second interview by asking the question: “What disability would affect you performing in this position at 100%?” Mr Smart responded by saying: “You’re obviously talking about my hook.” On his account, Ms Petrenas did not reply and Mr Smart continued: “Well, as I said in the first interview, there is no problem with my capability in lifting” or words to that effect (TP34-5). Mr Smart said that Ms Petrenas shook her head and was a bit “funny” after that. Mr Smart said that during the second interview, Ms Petrenas expressly asked: “What do you think the industry is going to think?” referring, as it appeared to him, to his arm (TP40, 96). Mr Smart said that it did not matter as long as he was doing his job.
Ms Petrenas denies asking a question in those terms, saying her question was as follows: “Considering the work environment, what difficulties do you think you may have in performing as an apiary inspector?” (TP91, 166). Ms Petrenas says she asked her question from an OH&S point of view (TP166) wanting to emphasise how tough the industry was and the physical demands of the position (TP221). She said she would not ask a question of the type suggested by Mr Smart (TP220).
There were a number of other topics covered in the second interview.
In relation to the unit’s car, it was a manual and Mr Smart gave evidence that he was told it had done only a low number of kilometres (and was not due to be replaced) and that Ms Petrenas said she liked driving it (TP36). Ms Petrenas said in evidence that any conversation concerning her liking to drive a manual car was her attempt to make polite conversation and develop rapport after a stall in the conversation (TP168). The car was not an issue to her. Mr Smart said that it was an issue with him but that it appeared it was not going to be replaced because Ms Petrenas liked driving it (TP36).
On another topic, Mr Smart gave evidence that Ms Petrenas asked him to describe himself in four words. His response was “outgoing, polite, understanding” plus something else. On his account she said: “Outgoing, that could mean arrogant, stubborn....” and then he responded by saying: “You’re calling me arrogant” (TP38-39). Mr Smart said Ms Petrenas said she had heard that on the broomrape (programme), but speaking under her breath (TP99-100).
It would seem to be common ground that the interview degenerated at some stage. Mr Smart’s evidence (TP40, 99) would support that characterisation at this point. Mr Smart said she lost her composure a bit at two points in the interview, towards the middle and towards the end. He said she became aggressive after “the four words to describe yourself” question (TP99).
Ms Petrenas said she was working from her prepared questions (exhibit R10) part of which were really a re-run of the initial part of the first interview. She acknowledged that the nature of the relationship in the second interview “changed and degenerated” (TP164). A little later she said:-
“....As we were going through the questions, Jason was again exhibiting some of the same characteristics that he had done in the first interview, tending not to focus on the questions but meandering, requiring paraphrasing and things such as that. As we were going through the interview, we slowly lost the relationship that had happened of me being the interviewer and Jason being the interviewee. Towards the end, there was a role reversal or from my perspective it felt like a role reversal. Jason was becoming very dogmatic, aggressive and I was feeling - going through a threatening-type of situation. So you know, by the time we got to look can you please let me know in a couple of days whether you’re interested in the you know, undertaking a field trial, it was rather a shemozzle of a chat.” (TP165-6) (See also 170, 233-4.)
She identified the point where their relationship degenerated after she asked question 6 from exhibit R10, which reads:-
“Considering the work environment, what difficulties do you think you may have in performing as an Apiary Inspector?”
Turning to Mr Smart’s account, towards the conclusion of the interview, he learned for the first time that there were two positions to be filled and that one had been offered to someone else at OPS3 level. What was offered to him was the OPS2 position. The OPS2 position would be under the other person and that person would be able to drive the car. Mr Smart believed there was only ever one position. From what Mr Smart understood, the position he applied for involved him doing the driving, “....checking the properties, doing the work, reporting to you [Petrenas]” (TP42). As Mr Smart said in evidence (TP95):-
“ ‘Hang on a minute, this isn’t the job I applied for. I didn’t apply for the job driving around with another fellow being trained under him.’ Training was for four months. How they did that, I wasn’t concerned, but the job I applied for had disappeared.” (See also TP73-77)
Ms Petrenas said he was offered a field trip (TP204, 218-9). Mr Smart denied he was offered a field trip but his evidence is to the effect that he was offered an inspector’s position at an OPS2 level. He acknowledged that to take up such a position offered no advancement for him, but the reason why he was no longer interested in the position was because of the discrimination he believed he was subjected to (TP93-94).
Ms Petrenas had no recollection as to when she told Mr Smart that he was being considered for the OPS2 position or if he was told about the lack of promotion that existed after the creation of the OPS3 position. Ms Petrenas did agree that there was a change to the funding in the time between the interviews (TP172-173). She also agreed that the position as initially advertised was not the same as the one on offer in the second interview (TP227). She admitted it may have been an oversight on her part that she did not inform Mr Smart of the changes in the situation (TP239).
Although Mr Smart was keen to attain the position during the second interview, a few days after the interview he telephoned Ms Petrenas and advised her that he would not take the position (TP42). He felt he had been discriminated against and felt disgusted by the way he had been treated (TP43). He felt that he would not have enjoyed working with Ms Petrenas (TP45, 94). Mr Smart also felt that the nature of the positions had changed because he felt that Ms Petrenas thought that he could not handle an OPS3 position (TP75) and that he refused the position because the one he wanted was not the position he was offered (TP76-77). As mentioned, he felt there was no career advancement for him (TP115).
Ms Petrenas denied that Mr Smart’s disability was an issue for her or that it influenced the interview process (TP176), and any issues that may have come across as relating to his disability were asked more from an OH&S point of view. Dr Gavey agreed that heavy lifting was drawn to the attention of every candidate (TP251-3).
Internal and external mediation was not successful in resolving whether there was discrimination and, if there was, how it should be resolved.
Legislation and legal principles
Before discussing the matter further, we give consideration to the legislation and principles of law that should guide us, particularly what we might loosely (and possibly inappositely) call the “mental element”.
Causal connection
The requirements for discrimination within s.66 are that a person discriminates “on the ground of impairment” if there is unfavourable treatment “because of” or “on the basis of” certain matters. Quite clearly, there needs to be a causal connection between the treatment and the impairment (see authorities discussed below).
What mental element is required?
This raises a number of questions. Does discrimination have to be deliberate or intentional? Is it sufficient if it is careless or reckless? May you have unconscious discrimination or unintended discrimination? Is it necessary to prove a motive to discriminate? Is the test simply an objective one (subject to proof of a causal connection)?
There have been a number of decisions that have given consideration to these general questions. In Jamal v Secretary, Department of Health and Another (1988) 14 NSWLR 252 (Court of Appeal NSW), the Court considered an appeal from the Equal Opportunity Tribunal to Hunt J. Dr Jamal succeeded before the Tribunal on a claim of unlawful discrimination based on a physical impairment. Dr Jamal had bi-lateral cataracts and applied for a position that would need him to perform “fine suturing” and night driving in his employment. The Department of Health (NSW) refused to employ him because he was unable to do those things. One of the grounds of appeal from Hunt J was that his Honour stated that “discrimination” involved “mens rea”. Kirby P said this (at 259):-
“....His Honour’s references, in a number of parts of his judgment, to “mens rea”, import into the notion of “discrimination” concepts of the criminal law which I consider to be inapposite to this context. Even assuming that his Honour’s expression was meant simply to indicate a requirement of “deliberate” discrimination, I do not believe that this is a requirement which Parliament has imposed. The reason for avoiding such a requirement was aptly stated, in the context of the interpretation of s 504 of the Rehabilitation Act of 1973 (US), by Marshall J writing the unanimous opinion of the United States Supreme Court in Alexander, Governor of Tennesee v Choate 469 US 287 (1985). A construction similar to that adopted by Hunt J had been urged in that case. It was argued that Federal law in the United States proscribed only intentional discrimination against the physically handicapped: see ibid at 294. Marshall J, by reference to the statutory language and legislative history of the United States legislation, determined otherwise (at 295-296):
‘Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference - of benign neglect. Thus Representative Vanik, introducing the predecessor to par 504 in the House, described the treatment of the handicapped as one of the country’s “shameful oversights” which caused the handicapped to live among society “shunted aside, hidden and ignored” ... Similarly, Senator Humphrey, who introduced a companion measure in the Senate, asserted that “we can no longer tolerate the invisibility of the handicapped in America” ... Federal agencies and commentators on the plight of the handicapped similarly have found that discrimination against the handicapped is primarily the result of apathetic attitudes rather than affirmative animus.’ ”
And further (at 260):-
“I am therefore of the opinion that Hunt J misdirected himself in concluding that “mens rea” or deliberate intention to discriminate was required before a breach of s 49B could be established. The proper approach to the section is that taken by the Tribunal. If, on the ground of a physical impairment or the characteristics had by, or generally imputed to, persons with such a physical impairment, an employer treats a physically handicapped person less favourably than in the same circumstances it would have treated a person not physically handicapped, that is unlawful discrimination. It is so even if the employer did not subjectively intend to stigmatise or penalise the physically handicapped person. It is so simply because the Act proscribes treating such person less favourably than a person not physically handicapped would have been treated.”
Samuels JA had this to say on that point (at 264-5):-
“Some criticism also was made of Hunt J’s statement that ‘discrimination involves mens rea’. That proposition it appears was advanced by counsel for the President of the Anti-Discrimination Board, the third respondent, (but repudiated before us), and his Honour accepted it. It seems to me that the use of the Latinism was intended merely to emphasise that conduct which may amount to discrimination must be deliberate. This does not mean that the actor must be influenced by ‘affirmative animus’ to use Marshall J’s phrase in Alexander, Governor of Tennessee v Choate 469 US 287 (1985), or that proof of discrimination in Pt IVA requires an element of malice in the ordinary legal sense of the intention to do something unlawful. ‘Discrimination’ is the label which the Act attaches to certain kinds of conduct which may be motivated by want of compassion or lack of understanding, or by ignorance or apathy, or by brutality, hostility or prejudice. The Act does not concern itself with motive nor does it make discrimination under Pt IVA depend upon proof of some deliberate intent to injure the prospects or deny the aspirations of the physically handicapped.
Nevertheless the act which constitutes discrimination must be advertent and done with knowledge of the physical impairment. ....”
Mahoney J did not comment on this point.
In Australian Iron & Steel Proprietary Limited v Banovic and Others (1989) 168 CLR 165, the High Court considered comparable legislation in New South Wales. Some members of the Court gave consideration to the questions raised earlier. Deane and Gaudron JJ said this (at 176-7):-
“....In Department of Health v. Arumugam [1988] V.R. 319, at p. 327, Fullagar J. said of the Victorian legislation that ‘the “ground” of one’s discrimination must be conscious to fall within the proscriptions of the Act’. On the other hand, in Reg. v. Birmingham City Council; Ex parte Equal Opportunities Commission [1989] A.C. 1155, at pp. 1193-1194, Lord Goff stated that ‘[t]he intention or motive of the defendant to discriminate ... is not a necessary condition to liability’. His Lordship explained that, if it were otherwise, ‘it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy’.
It is not difficult to envisage situations in which the ground of an act or decision may be identifiable as one falling within s. 24(1)(a), (b) or (c) notwithstanding that the act or decision is not actuated by a motive to discriminate. One need go no further by way of example than an act or decision - as in the past frequently happened - denying women certain opportunities by reference to the inadequacy of toilet facilities. And in that situation it is possible that ‘consciousness’ may extend only to the inadequacy of toilet facilities without a full appreciation that that consideration is but an aspect of a characteristic that appertains generally or is generally imputed to women. And there may be other situations in which habits of thought and preconceptions may so affect an individual’s perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision. Thus, in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.”
In another High Court decision of Waters and Others v Public Transport Corporation (1991) 173 CLR 349, the Court considered the Equal Opportunity Act 1984 (Vict.), including s.17(1) which is similar to s.6(3) here. Mason CJ and Gaudron J (with whom Deane J agreed on this point at 382) said this (at 359):-
“Section 17(1): does it require an intention or motive to discriminate?
There is some force in the suggestion that the expressions ‘on the ground of the status’ and ‘by reason of the private life’ in s. 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person (see Department of Health v. Arumugam, [1988] V.R. 319, at p. 327, per Fullagar J.) However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose (Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R., at p. 547; see also Street (1989), 168 C.L.R., at pp. 487,566). In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, ‘to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status’. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s. 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of ‘on the ground of’ and ‘by reason of’ ”.

As we understand these authorities, the test is essentially an objective one. There is no need to prove a deliberate discrimination or an intention or motive to discriminate (although, if present, would be very important factual findings). Clearly, there is an essential requirement that the person allegedly doing the discriminating know of the impairment that is said to give rise to the discrimination. It is, however, possible to unconsciously discriminate on the basis of impairment where the stated reason for the decision is betrayed by underlying unconscious discrimination.
At this stage, we summarise a number of aspects of the case, most of which have already been touched upon.
Mr Smart
1.Mr Smart has had a prosthesis on his left arm since birth. However, he seems to have been able to lead a physically active life, particularly on the sporting field where he has enjoyed considerable success. Evidence was given of many other examples of physical endeavour.
2.However, he has worked within the Public Service in South Australia in a number of roles, primarily in an administrative capacity. Whilst he has acted in a range of more senior positions over the years, his substantive positions have been at the base grade throughout his career.
3.Evidence was given that Mr Smart believed he had been discriminated against because of his impairment when applying for jobs on a number of occasions over the years. This has led him to be sensitive about the impairment, frustrated at his inability to progress his career and angry about the perceived discrimination he has suffered. He became quite emotional whilst giving evidence around this background.
4.It is against this background and with this mindset that Mr Smart came to the interview process for the apiary inspector’s position at PIRSA.
The Process
5.PIRSA were under considerable pressure to get one or more apiary inspectors into the field. They had none and had an outbreak of American Foulbrood with which to deal.
6.Its situation was complicated by the fact that their “senior” inspector, Mr Steadman, whose substantive position was OPS2 level, but who was paid at OPS3 rates, was on twelve months leave of absence. PIRSA had an obligation to keep his position open for him.
7.PIRSA therefore sought applicants for an OPS2 apiary inspector position but, in the advertisement, indicated they may be able to upgrade the classification to OPS3 after a period of time, subject to ability and performance of the selected incumbent. Applications were sought from those on the public service redeployment list and from across PIRSA.
8.Nine applications were received, of which four were short listed. Jason Smart was one of these.
9.Interviews were conducted by Ms Elena Petrenas, the manager of the Apiary Inspection Unit and Dr Lawrence Gavey, a senior project officer - Policy Development within the Animal Health Division of PIRSA. Neither had had much training in employment interviewing and each had participated in only one previous interview panel.
10.A series of questions and “role plays” was prepared by the panel in consultation with the human resource specialists within PIRSA. During the interviews with the four short-listed candidates, the panel stuck rigorously to the prepared questions.
11.Short notes were taken by each panel member, but no specific analysis of the candidates' experience, knowledge and skills against the essential and desirable criteria set out in the Job and Person Specification was done. It is not clear whether reference checks were done.
12.The outcome of the interview process was that one candidate, Mr Quast, was offered a senior inspector’s position at the OPS3 level and another candidate, Mr Hodgson, was offered a position at the OPS2 level. Both went on field trials and Mr Hodgson declined the position. There were protracted negotiations with Mr Quast over whether he would accept the position.
13.Whilst the interview and evaluation process had some shortcomings and the findings were quite subjective, there is little dispute that the results were reasonable, based on a review of the relevant curriculum vitae and the notes taken. Mr Smart, the third ranked candidate, gave evidence that he did not really dispute the findings (TP83).
14.When Mr Hodgson declined the OPS2 position, Ms Petrenas decided to offer Mr Smart a field trip, subject to a further conversation with him. She telephoned him, advised him that his interview had been “very bad”, but that she wanted to talk with him again to clarify some issues and give him a further chance.
15.In preparation for this discussion, Ms Petrenas again developed a set of questions to ask Mr Smart, some of which were the same as those in the initial interview. She claimed she checked these with the human resources specialists at PIRSA.
16.There is conflicting evidence about the specific questions asked, and answers given, during the discussions that ensued. However, both parties agree that the tone of the discussions became tense and angry.
17.At the conclusion of the discussion, Ms Petrenas asked Mr Smart to get back to her within a couple of days to indicate whether he wished to go on a field trip. He ultimately phoned her to say he did not wish to proceed with his application.
The Key Issues
18.The interview process conducted by PIRSA for the apiary inspectors was somewhat flawed in a number of ways. It resulted in quite subjective judgments being made about the suitability of candidates, thus opening the process to the kind of challenge that is currently before the Tribunal. The normal safeguards of the public sector selection processes were not fully provided.
19.The failure of Ms Petrenas to advise Mr Smart in the lead up to and during the second “interview” of what had transpired following the first interview, combined with her decision to turn what was purported to be “an informal chat” into a second formal interview process, clearly led to Mr Smart’s confusion and consequent frustration about what was happening. Given his mindset, the result was an angry interchange and Mr Smart’s clear conviction that this was yet another case of discrimination.
20None of the process, in itself, constitutes discrimination, but does explain how the process came unstuck.
21.However, there was consistent evidence provided that, during the second interview, Ms Petrenas raised the issue of how Mr Smart could be perceived by apiarists, given he had the prosthesis. She gave examples of how she had had a difficult time acting in the role, because she is female. She also indicated a perceived reluctance to change the vehicle required for the position to an automatic, although she claimed she brought up the issue of the motor vehicle in an attempt to “lighten” the tenor of the discussion, which, by the time the vehicle was raised, had become tense.
22.There is conflicting evidence as to which questions were asked during the second interview. Mr Smart is quite clear he was asked, as the first question, “What disability do you think you will have in carrying out the duties of the position?” Ms Petrenas strongly denies this. However, question 6 on the sheet Ms Petrenas claimed she used for this “interview” asks, “What difficulties do you think you will have in carrying out the duties of the position?”
23.We are inclined to accept Ms Petrenas’ version of this issue, because she clearly did have notes up to question 6 and because the evidence seems clear that things became very difficult after the particular question was asked. It is probable that Mr Smart heard “disability” not “difficulty”. He was already becoming confused and upset by this stage of the interview for the reasons to which we have already alluded.
Was there discrimination?
We are satisfied that Mr Smart genuinely believed he was discriminated against, particularly through the second interview process. We are not satisfied that there was any discrimination during the first interview or in Mr Smart not being offered a position at that stage. The results of the first interview were quite reasonable in all the circumstances, albeit the subjective nature of the evaluation laid it open to challenge.
We are concerned that Ms Petrenas raised the question of how Mr Smart would deal with difficulties he may encounter because of his disability. Mr Smart’s counsel argued that this demonstrated Ms Petrenas’ concern as to how the Department would “appear” to the industry if they employed a person with only one arm. We think there is an element of truth in this, but we do not think that involved any discrimination.
We also believe Ms Petrenas was incorrect in her belief that she should treat Mr Smart in a way that basically ignored the fact that he has a disability or impairment. This shows some insensitivity to the fact that there is an impairment. To not discriminate does not imply ignoring the obvious and the potential for an individual to be quite sensitive about the possibility of being discriminated against. Further, we consider Ms Petrenas displayed a lack of understanding in the total interview process of how someone with an impairment might react. She needed to be sensitive to his sensitivity. This she was not.
We are not satisfied there was any deliberate or conscious discrimination. The evidence does show that Mr Smart was offered a field trial, being the next stage of the process, but he declined the offer and withdrew his application after the second interview. Any discrimination in that situation would have to be on the basis that, despite appearances, the adverse manner in which he was treated because of his disability was designed to have him refuse the position. However, we do not think that that was the situation, either consciously or unconsciously.
Quite apart from that means of discrimination, we are not satisfied, on the balance of probabilities, that there was any discrimination, conscious or unconscious, within the meaning of the Act. We find that the reason for the outcome of the selection process, as it affected Mr Smart, was the poor process itself, particularly the way the second interview with Mr Smart was conducted. The questioning was inept and insensitive. By her own admission, Ms Petrenas acted unprofessionally. Mr Smart was sensitive about his disability and probably read more into her words than was intended by her. It was the process that was flawed, not any discrimination within that process. Any person, with or without a disability, experiencing this process is likely to have reacted in a similar fashion.
It was also very apparent to us that the second interview degenerated into a clash of personalities. That had the clear potential to affect the perceptions of both of them. It is partly for those reasons that we have had great difficulty in disentangling their respective accounts.
We have already noted that Ms Petrenas said things to Mr Smart to the effect that she was concerned about how he might be perceived in the industry. She also, in our view, made an error of judgment in talking of the manual car in the way she did. She displayed a complete lack of understanding of how someone with an impairment might perceive those topics and that the manner in which they were discussed was offensive. Even if it could be said that those matters amounted to discrimination (and we do not), we do not consider that any such discrimination was a substantial reason for the outcome of the selection process. In short, it was the flawed process when two disparate personalities clashed, particularly in the context of a failure by Ms Petrenas to tell Mr Smart of the changed nature of the position on offer or the status of the outcomes of the first interview process.
While, as a consequence, we have to dismiss the complaint, that is not an end to the matter. We have no power to make consequential orders, but we recommend that PIRSA give its personnel the necessary training to conduct staff interviews and how to be more sensitive to the frustration and anger someone with a disability may have.

[2002] SADC 177

23 December 2002